CLJ Bulletin, Issue 2011, Vol 51

30 December 2011

CLJ Law Malaysia

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New This Week 1. Legislation Highlights
2. Articles
    a) Legal Network Series Articles
3. Latest Cases
    a) Legal Network Series
    b) CLJ Volume 9 (Part 2) 2011

1. Legislation Highlights

Principal Acts

NUMBER

TITLE

DATE COMING INTO FORCE

REPEALING

ACT 728 Malaysian Quarantine And Inspection Services Act 2011

1 January 2012 [PU(B) 603/2011] in Peninsular Malaysia and Federal Territory of Labuan

- Nil -
ACT 729 National Sports Institute Act 2011 16 September 2011 [PU(B) 503/2011] - Nil -
ACT 730 Trade Descriptions Act 2011 1 November 2011 [PU(B) 540/2011] - Nil -
ACT 731 Money Services Business Act 2011 1 December 2011 [PU(B) 590/2011] ACT 577
ACT 732 National Wages Consultative Council Act 2011 23 September 2011 [PU(B) 507/2011] - Nil -

Amending Acts

NUMBER

TITLE

DATE COMING INTO FORCE

PRINCIPAL / AMENDING ACT NO

ACT A1403 Securities Commission (Amendment) Act 2011 3 October 2011 [PU(B) 517/2011] ACT 498
ACT A1404 Valuers, Appraisers And Estate Agents (Amendment) Act 2011 19 August 2011 ACT 242
ACT A1405 International Organizations (Privileges And Immunities) (Amendment) Act 2011 16 September 2011 ACT 485
ACT A1406 Capital Markets And Services (Amendment) Act 2011 3 October 2011 [PU(B) 518/2011] ACT 671
ACT A1407 Lembaga Pembangunan Industri Pembinaan Malaysia (Amendment) Act 2011 Not Yet In Force ACT 520

PU(A)

NUMBER TITLE DATE COMING INTO FORCE

PRINCIPAL / AMENDING ACT NO

PU(A) 410/2011 Workmens Compensation (Foreign Workers Compensation Scheme) (Insurance) (Amendment) (No 3) Order 2011 15 December 2011 ACT 273
PU(A) 411/2011 Customs (Values) (Palm Oil) (No 51) Order 2011 19 December 2011 ACT 235
PU(A) 412/2011 Loans Guarantee (Declaration Of Bodies Corporate) (Projek Lebuhraya Usahasama Berhad) Order 2011 20 December 2011 ACT 96
PU(A) 413/2011 Road Transport (Prohibition Of Use Of Road) (City Of Kuala Lumpur) Order 2011 Not Yet In Force ACT 333
PU(A) 414/2011 Control Of Supplies Act 1961 Control Of Supplies (Controlled Articles) (No 6) Order 2011 Not Yet In Force ACT 122

PU(B)

NUMBER TITLE DATE COMING INTO FORCE

PRINCIPAL / AMENDING ACT NO

PU(B) 601/2011 Notice To Third Parties Of Anti-Money Laundering And Anti-Terrorism Financing Act 2001 19 December 2011 ACT 613
PU(B) 602/2011 Notice To Third Parties Of Anti-Money Laundering And Anti-Terrorism Financing Act 2001 19 December 2011 ACT 613
PU(B) 603/2011 Appointment Of Date Of Coming Into Operation Of The Malaysian Quarantine And Inspection Services Act 2011 Not Yet In Force ACT 728
PU(B) 604/2011 Appointment Of Members Of The Commission Not Yet In Force ACT 695
PU(B) 605/2011 Notice Of Proposed Revocation Of Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Town - Kuala Lumpur Not Yet In Force ACT 56/1965

^^

2. Articles

a) Legal Network Series Articles

1. Undang-Undang Gangguan Seksual Di Malaysia: Satu Analisa [Read excerpt]
By Rohani Abdul Rahim*

2. Aiming At Moving Targets: Home Foreclosure Mediation In The United States* [Read excerpt]
By Campbell Bridge**

^^

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT
[2009] 1 LNS 1250 [HC] Cheah Oon Leng, Winnie v. Arab-Malaysian Securities Sdn Bhd

CIVIL PROCEDURE: Limitation - Accrual of defendant's right to deduct sums owed from plaintiff's Remisier Deposit Account - Whether cause of action accrued at time purchase price of shares were not paid at T + 8 or when losses were ascertained - Whether defendant's right to make deduction from plaintiff's Remisier Deposit Account time barred

DAMAGES: Quantum - Plaintiff barred from full access to her remisier account and purchase limit ratio reduced - Whether defendant wrongfully restricted plaintiff's access to her Remisier's Trading Account causing loss of commissions or loss of business opportunity - Whether figures projected by plaintiff reasonable - Whether having regard to market conditions then and other contingencies, 20% of the total amount claimed was reasonable

SECURITIES: Remisier - Relationship with stock broking company - Client introduced by plaintiff to defendant - Client failing to pay defendant purchase price of shares bought - Whether defendant had right to deduct sums owed from plaintiff's Remisier Deposit Account - Transfer of rejected purchase from client's margin account into his personal trading account - Whether such transfer lawful - Whether defendant had right to deduct from plaintiff's Remisier Deposit Account losses incurred by client from a margin account with a different entity

SECURITIES: Shares - Failure of client to make payment for shares - Whether defendant obliged to force sell client's shares on or before T + 8 or at any reasonable time thereafter - Instructions to force sell shares given 27 months from T + 8 - Whether defendant's conduct in delaying force selling on account of negotiations reasonable

[2009] 1 LNS 1252 [HC] Tho Yow Pew & Anor v. Chua Kooi Hean

SUCCESSION: Will - Validity - Whether deceased not of sound mind, memory or understanding and lacked physical and mental capacity in executing will - Whether deceased executed will through coercion and undue influence - Whether deceased had testamentary capacity at time of making or executing the will - Whether any suspicious circumstances surrounding the making of will

[2010] 1 LNS 288 [HC] PP v. Mohd Najimuddin Nasaruddin & Anor

CRIMINAL LAW: Penal Code, s. 302 - Murder - Whether prosecution made out a prima facie case against accused on offence charged - Whether prosecution adduced sufficient evidence to establish offence of murder within s. 300 or culpable homicide in s. 299 - Whether OKT1 and OKT2 intended to kill deceased - Wounds mostly not fatal in nature, save for fatal injury on head - Death not instantaneous - No evidence of "intention" as prescribed in limb (a), (b) and (c) of s. 300 - Prosecution made out prima facie case against both OKT1 and OKT2 for culpable homicide not amounting to murder under s. 304(a) of the Penal Code - Amendment of charge to s. 304(a) of the Penal Code - Guilty pleas not mitigating factors and no discount in sentence given

[2011] 1 LNS 12 [HC] Hii Chan Seng v. Aida Balingan Baron

FAMILY LAW: Custody - Welfare of child of paramount consideration - Whether preference indicated by child should be taken into account in determining custody - Uncertainty of mother's right to continued residence in Malaysia and apparent failure to provide a stable home environment - Whether presumption that mother more suitable parent displaced - Whether fair to child to undergo drastic change in living arrangements - Whether custody of child should be transferred from the father to mother

FAMILY LAW: Maintenance - Means and needs of the parties - Lump sum payment - Risk of interrupted payment of monthly maintenance by petitioner - Whether lump sum payment more practical

FAMILY LAW: Matrimonial assets - Division - Acquired solely by petitioner's efforts - Whether court had power to order division of properties - Respondent contributed to welfare of family and looked after house - Another property co-owned with petitioner's brother - Co-owned property purchased with sole effort of petitioner as a personal investment and not intended to benefit family - Whether this property was a matrimonial asset - Whether respondent should be given 25% share of matrimonial home and petitioner's half share in co-owned property

[2011] 1 LNS 16 [HC] Ranbaxy (Malaysia) Sdn Bhd v. Ei Du Pont De Nemours And Company

PATENTS: Validity of patent - Defendant's 414 Patent - Whether Claims 7 and 8 of 414 Patent valid and enforceable against any third party including plaintiff

PATENTS: Specification - Insufficient disclosure of Claims 7 and 8 of 414 Patent - Whether description of 414 Patent specification disclosed invention as claimed in Claim 7 in a manner sufficiently clear and complete for invention to be carried out by a person skilled in the art - Whether there was sufficient support in 414 Patent specification for Claim 8 - Claims 7 and 8 not present in any corresponding patents in prescribed countries or convention - Whether non-compliance with Patents Act 1983 and the Patents Regulation 1986 - Whether plaintiff's objection sustainable

PATENTS: Infringement - Defendant's counterclaim for infringement against plaintiff - Admitted that plaintiff sold COVANCE products in Malaysia - Whether plaintiff's COVANCE products fell within the scope of Claim 7 of defendant's 414 Patent - Whether plaintiff's Covance 50 mg and 100 mg infringed Claim 7 of defendant's 414 Patent

^^

b. CLJ Volume 9 (Part 2) 2011

COURT

FEDERAL COURT

Admiral Cove Development Sdn Bhd v. Balakrishnan Devaraj & Anor
Alauddin Mohd Sheriff PCA, Hashim Yusoff, Mohd Ghazali Yusoff FCJJ
(Contract - Misrepresentation - Sale and purchase of property - Rescission) [2011] 9 CLJ 133 [FC]

COURT APPEAL

Ibrahim Amat v. PP
Hasan Lah, Abdul Wahab Patail, Clement Skinner JJCA
(Criminal Law; Criminal Procedure - Firearms (Increased Penalties) Act 1971 - Section 3 - Conviction and sentence - Appeal against - Joinder of charges - Discretionary power of trial judge) [2011] 9 CLJ 153 [CA]

Kow Liang Tiang v. PP
Ahmad Maarop, Mohamed Apandi Ali JJCA, Balia Yusof Wahi J
(Criminal Law; Evidence - Murder - Conviction and sentence - Appeal against - Circumstantial evidence - Securing conviction on) [2011] 9 CLJ 172 [CA]

Yee Cheong Seng v. PP
Zaleha Zahari, Clement Skinner, Balia Yusof Wahi JJCA
(Criminal Law - Dangerous Drugs Act 1952 - Section 12(2) & 39B(1)(a) - Conviction on two charges of possessing and of trafficking) [2011] 9 CLJ 189 [CA]

HIGH COURT

Nadarajan Subramaniam v. American International Assurance Co Ltd
Harmindar Singh Dhaliwal JC
(Evidence; Insurance - Weight - Accident insurance - Cause of death) [2011] 9 CLJ 198 [HC]

Perbadanan Nasional Bhd v. Shaharin Shaharudin
Lau Bee Lan J
(Civil Procedure; Contract; Evidence - Pleadings - Departure from - Breach of duty - Adverse inference - Burden of proof - Evidence Act 1950, s. 101(2)) [2011] 9 CLJ 208 [HC]

PP v. Mervyn Chan
Abdul Rahman Sebli J
(Criminal Law - Dangerous Drugs Act 1952, s. 39B(1)(a) - Trafficking) [2011] 9 CLJ 235 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Pleadings - Departure from - Defendant's case at trial differed from his pleaded case - Whether material departure - Whether defendant consistent in his stand all throughout - Effect of
Perbadanan Nasional Bhd v. Shaharin Shaharudin
(Lau Bee Lan J) [2011] 9 CLJ 208 [HC]

CONTRACT

Breach - Breach of duty - Defendant signing P4 and P5 - Whether exhibits executed without plaintiff's consent - Duties owed by defendant to plaintiff - Whether plaintiff suffered loss and damage - Evidence adduced - Whether plaintiff discharged burden of proving breach by defendant
Perbadanan Nasional Bhd v. Shaharin Shaharudin
(Lau Bee Lan J) [2011] 9 CLJ 208 [HC]

Damages - Loss of profit - Whether proven - Effect of - Whether plaintiff made attempt to mitigate losses - Evidence adduced - Evaluation of
Perbadanan Nasional Bhd v. Shaharin Shaharudin
(Lau Bee Lan J) [2011] 9 CLJ 208 [HC]

Misrepresentation - Innocent misrepresentation - Relief of - Sale and purchase of property - Respondents rescinding agreement four years after receiving vacant possession - Whether representation induced respondents to enter agreement - Whether respondents had intention to affirm agreement - Conduct of respondents - Whether delay in rescinding agreement fatal - Whether innocent misrepresentation grounds to set aside executed contract - Sim Thong Realty Sdn Bhd v. Teh Kim Dar
Admiral Cove Development Sdn Bhd v. Balakrishnan Devaraj & Anor
(Alauddin Mohd Sheriff PCA, Hashim Yusoff, Mohd Ghazali Yusoff FCJJ) [2011] 9 CLJ 133 [FC]

Rescission - Misrepresentation - Sale and purchase agreement - Respondents rescinding agreement four years after receiving vacant possession - Whether respondents had intention to affirm agreement - Conduct of respondents - Whether delay in rescinding agreement fatal - Whether rescission available for properly executed conveyance - Sim Thong Realty Sdn Bhd v. Teh Kim Dar
Admiral Cove Development Sdn Bhd v. Balakrishnan Devaraj & Anor
(Alauddin Mohd Sheriff PCA, Hashim Yusoff, Mohd Ghazali Yusoff FCJJ) [2011] 9 CLJ 133 [FC]

Sale and purchase of property - Sale and purchase agreement - Misrepresentation - Respondents rescinding agreement four years after receiving vacant possession - Whether representation induced respondents to enter agreement - Whether respondents had intention to affirm agreement - Conduct of respondents - Whether delay in rescinding agreement fatal - Whether innocent misrepresentation grounds to set aside executed contract - Sim Thong Realty Sdn Bhd v. Teh Kim Dar
Admiral Cove Development Sdn Bhd v. Balakrishnan Devaraj & Anor
(Alauddin Mohd Sheriff PCA, Hashim Yusoff, Mohd Ghazali Yusoff FCJJ) [2011] 9 CLJ 133 [FC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Sections 12(2) & 39B(1)(a) - Conviction on two charges of possessing 6.58 grams and of trafficking in 191.65 grams methamphetamine - Two years' imprisonment and three strokes of rattan on first charge and death sentence on second charge - Appellant appealing against conviction and sentence - Whether trial judge erred in relying on hearsay evidence of police officer relating to information received about drug trafficking activities - Whether appellant sufficiently identified as accused in crime scene - Whether appellant had actual possession and knowledge of drugs - Whether trial judge erred in rejecting presence of another party as mere fabrication
Yee Cheong Seng v. PP
(Zaleha Zahari, Clement Skinner, Balia Yusof Wahi JJCA) [2011] 9 CLJ 189 [CA]

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking - Trafficking in dangerous drugs - Proof of case beyond reasonable doubt - High Court interpreter caught red-handed with package containing drugs - Statutory presumptions of knowledge and trafficking unrebutted - Dangerous Drugs Act 1952, s. 37(d) & (da)
PP v. Mervyn Chan
(Abdul Rahman Sebli J) [2011] 9 CLJ 235 [HC]

Firearms (Increased Penalties) Act 1971 - Section 3 - Conviction and sentence - Appeal against - Discharging firearm with intent to cause death or hurt while committing scheduled offence - Possession of arms without license - Whether appellant had intention to cause death while resisting arrest - Whether irresistible inference from appellant's acts supports finding of guilt - Whether appreciation of evidence by trial judge flawed - Mat v. PP
Ibrahim Amat v. PP
(Hasan Lah, Abdul Wahab Patail, Clement Skinner JJCA) [2011] 9 CLJ 153 [CA]

Murder - Conviction and sentence - Appeal against - Conviction based on circumstantial evidence - Whether circumstantial evidence sufficient to prove murder - Penal Code, s. 302
Kow Liang Tiang v. PP
(Ahmad Maarop, Mohamed Apandi Ali JJCA, Balia Yusof Wahi J) [2011] 9 CLJ 172 [CA]

CRIMINAL PROCEDURE

Trial - Joint trial - Joinder of charges - Discretionary power of trial judge - Whether trial judge wrong in allowing joint trial - Whether offences closely connected to form same transaction - Criminal Procedure Code, s. 165(1)
Ibrahim Amat v. PP
(Hasan Lah, Abdul Wahab Patail, Clement Skinner JJCA) [2011] 9 CLJ 153 [CA]

EVIDENCE

Adverse inference - Plaintiff failing to call witnesses to show status and availability of documents - Reasons for the same - Whether explanations acceptable - Whether adverse inference drawn against plaintiff - Evidence Act 1950, s. 114(g)
Perbadanan Nasional Bhd v. Shaharin Shaharudin
(Lau Bee Lan J) [2011] 9 CLJ 208 [HC]

Burden of proof - Allegation of fact - Whether plaintiff aware of conversion to non-convertible Preference Shares - Whether plaintiff bears legal burden to prove allegation - Evidence Act 1950, s. 101(2)
Perbadanan Nasional Bhd v. Shaharin Shaharudin
(Lau Bee Lan J) [2011] 9 CLJ 208 [HC]

Circumstantial evidence - Securing conviction on - Conduct of appellant - Facts in issue - Consistency of police reports made - Blood samples taken - Whether cumulatively proved appellant's guilt in murder - Evidence Act 1950, ss. 7, 8(2), 14, 35 - Penal Code, s. 302
Kow Liang Tiang v. PP
(Ahmad Maarop, Mohamed Apandi Ali JJCA, Balia Yusof Wahi J) [2011] 9 CLJ 172 [CA]

Weight - Testimony of expert - Cause of death of insured - Testimony given by physician - Discrepancy in physician's statement as to cause of death - Physician unable to provide reasonable explanation - Post mortem report signed by him - Post mortem examination conducted by another party - Whether evidence was reliable and safe to be acted upon
Nadarajan Subramaniam v. American International Assurance Co Ltd
(Harmindar Singh Dhaliwal JC) [2011] 9 CLJ 198 [HC]

INSURANCE

Accident insurance - Repudiation - Insured died from intracerebral hemorrhage - Plaintiff claiming as nominee to three insurance policies - Defendant did not receive nomination forms save for one - Whether defendant could claim plaintiff was not the nominee - Insured dealt with defendant's agent - Whether knowledge of defendant's agent deemed to be knowledge of defendant - Section 151(1) Insurance Act 1996 - Plaintiff failed to disclose full extent of deceased's earnings - Whether this was material non-disclosure - Whether cause of death due to illness or accident - Whether plaintiff able to prove insured's death was due to accident
Nadarajan Subramaniam v. American International Assurance Co Ltd
(Harmindar Singh Dhaliwal JC) [2011] 9 CLJ 198 [HC]

Agents - Insured dealt with defendant's agent - Whether agent's knowledge could be deemed as knowledge of defendant - Insurance Act 1996, s. 151(1)
Nadarajan Subramaniam v. American International Assurance Co Ltd
(Harmindar Singh Dhaliwal JC) [2011] 9 CLJ 198 [HC]

^^

CASE OF THE WEEK

LEE CHEE KIANG v. JOHNSON TAN TECK SENG & ANOR

LEGAL PROFESSION: Duty to client - Conveyancing - Solicitor's failure to check on authenticity of power of attorney - Client unable to proceed with purchase of land despite consideration paid - Whether solicitor to have advised client against release of purchase consideration - Whether duty of solicitor to check on authenticity of power of attorney - Whether solicitor failed in his basic duty to protect client's interest

LEGAL PROFESSION: Duty to client - Conflict of interests - Solicitor acting for four parties in transaction - Whether any legal impediment - Standard of care to all parties - Whether same

TORT: Negligence - Professional negligence - Standard of care - Rejection of Bolam principle and application of Rogers v. Whitaker principle - Determining factor

EVIDENCE: Admissibility - Oral evidence - Evidence Act 1950, s. 91

CONTRACT: Power of Attorney - Effect of registration in Sabah - Whether duty of solicitor to check on authenticity


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